Volume 42 — Oklahoma Reports

<p>1. APPEAL AND ERROR — Findings of Pact — Conflicting Evidence. Where there are controverted issues of fact and conflicting testimony as to their existence, the findings of the jury in reference thereto under instructions not complained of should be binding-on this court.</p> <p>2. WITNESSES — Right to Refresh Memory — Reference to Memo-randa. Upon an issue as to the number of acres in a tract of land, a witness who stepped the land and made memoranda of its dimensions in steps at the time will be allowed to refresh his memory as to the number of steps by reference to such memoranda.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by John A. Alfred, as administrator of the estate of-Luther Woodring, deceased, against the St. Louis, Iron Mountain & Southern Railway Company, for damages. Judgment for defendant, and plaintiff brings error.

<p>1. INDIANS — Property—Legitimation—Heirship. An illegitimate, mixed-blood Creek citizen having been legitimatized under section 4399, Rev. Laws 1910, by the father without the consent of the mother, and haying died November 4, 1908, without issue, unmar- ' ried, intestate, and being survived by his father and mother, who had not intermarried, held, that the mother inherited his allotment under section 8421, Rev. Laws 1910, and that the father inherited no part thereof.</p> <p>2. BASTARDS — Legitimation—Effect on Mother’s Rights. While the effect of legitimatizing a child under section 4399, Rev. Laws 1910, is to establish reciprocal rights and duties between the father and the child, the same as those existing between legitimate parents and their legitimate children, yet, where the rights of the mother are involved, the child is still an illegitimate.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. EVIDENCE — Witnesses—Expert Testimony. In an action for injuries caused by the negligent construction of the framework of a building, where it is necessary for the jury to understand how it is constructed in order to determine whether it is negligently done, and such framework is so complicated that the jury cannot understand how it is constructed without the testimony of an expert, it is not improper to admit expert testimony; and, in such case, architects, carpenters, and builders, if their experience and observation are shown to be sufficient, are competent to testify.</p> <p>2. INSTRUCTIONS APPROVED. Instructions examined and held to contain no material error.</p> <p>3. APPEAL AND ERROR — Verdict—Inadequate Recovery. A judgment will not be reversed because of the smallness of the verdict, where it does not appear from the record that the verdict is less than the actual pecuniary loss sustained, nor that the jury was wrong in its estimate of the extent of the injuries.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Jefferson County; Erank M. Bailey, Judge. Action by Moody Franklin and another against John Wright, Sheriff, and others, fon an injunction. Judgment for defendants, and plaintiffs bring error.

<p>1. APPEAL AND ERROR — Exclusion of Immaterial Evidence. It is never reversible error to refuse immaterial evidence.</p> <p>2. SET-OPF AND COUNTERCLAIM — Damages from Tort — Action on Contract. Damages arising out of an actionable tort in a land trade, cannot be set off or counterclaimed, in a suit on a contract which was separate, distinct, and apart from the transaction in which the tort was committed.</p> <p>3. FRAUD — Expression of Opinion. A purchaser of land cannot predicate fraud upon statements made by the vendor which, either by reason of their form or subject-matter, show to be mere expressions of opinion. A purchaser is not justified in relying upon the accuracy of such statements, and if he does, and the opinion turns out wrong, the purchaser has no action because thereof.</p> <p>(Syllabus by Brewer', C.)</p>

Error from Superior Court, Garfield County; Dan Huett, Judge. Action by Mary Weeldey against the 'Modern Woodmen of America to recover -the amount of benefit certificate issued to June Weekley, deceased. Judgment was for the plaintiff, and the defendant brings error.

<p>1. FRAUDS, STATUTE OF — Agreement to Fay Debt of Another— Evidence. The conversation set out in the opinion did not constitute an original agreement to pay the debt of another, and an action cannot be maintained thereon to recover the amount of such debt.</p> <p>2. JUSTICES OF THE PEACE — Appeal—Parties. An order made by the county judge dismissing an appeal taken by one of two defendants from a judgment of a justice of the peace on the ground that both did not join in such appeal was reversible error, since, under the Constitution and statute, either of such defendants had the right to an appeal. Sections 14 and 15, art. 7 (sec. tions 199 and 200, Williams’ Ann. Ed.), Const. Okla., and section 5466, .Rev. Laws 1910.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Atoka County; J. G. Ralls, Special Judge. </p> <p>' Action by the Oklahoma State Bank of Atoka against T. E. Horne. Judgment for the plaintiff, and defendant brings error.</p>

<p>1. FEAUD- — -Sale of Land — Eight of Action. Where a person has been induced through the fraud and false statements of another, to purchase property as clear, which in fact is incumbered by a valid enforceable lien, such defrauded person, in an action for damages because of the fraud and deceit, may recover the amount of the incumbrance by way of damages, except as it may exceed the value of the property, and without having suffered a foreclosure, ouster, or having paid it off, because he ought to be considered presently damaged in a sum which the fraud of another has made it inevitable he shall pay to protect his property.</p> <p>2. SAME — False Eepresentatlons — Knowledge. A false and fraudulent representation, by one who assumes to have personal knowledge to the purchaser of real estate that there is no incumbrance thereon, upon which representation the purchaser relies and acts to his injury, will sustain an action for the tort, although the purchaser might have discovered the fraud by searching the public records. A man cannot state falsely to another in such cases and then complain because he was believed.</p> <p>3. PAETNEESHIP — Fraud of Partner — -Exchange of Land — Liability. Where one partner, while acting for the firm, makes an exchange of lands by means of false representations, the other partners are liable for the fraud, though they personally take no part in the transaction, and are ignorant of the fraud.</p> <p>(Syllabus by Brewer, G.)</p>

Error from District Court, Canadian County; J. I. Carney, Judge. Action by Celeste Mitchell against the Cleveland Trinidad Paving Company and the city of El Reno. Judgment for plaintiff, and the- Cleveland Trinidad Paving Company brings error, and the city files cross-errors.

<p> Error from County Court, Hughes County; John E. Coffman, Special Judge. </p> <p>Action by Nicholas Bilby against William Bean and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Urror from Superior Court, Oklahoma County; Ud D. Oldfield, Judge. </p> <p>Action by the Dr. Koch Vegetable Tea Company against M. W. Shumann, M. L- Feary, and David Sowers. Judgment was for 'the defendants Feary and Sowers. Plaintiff brings error.</p>

<p> Brror from County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action by Mrs. D. McCormack against George D. Harmon. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CONSTITUTIONAL LAW — Municipal Corporations — Improvements — Sidewalks—Special Assessments. The hoard of trustees of an incorporated town, organized in pursuance of the laws of Oklahoma Territory, as extended in force in the state by the terms of section 2 of the Schedule to the Constitution, and the provisions of section 10 of said Schedule, has the power to levy special assessments against abutting property for the purpose of laying sidewalks. Leatherman v. Town of Addington, 37 Okla. 436, 132 Pae. 129.</p> <p>a, EMINENT DOMAIN — Taking Private Property Without Compensation — Statutes. A statute that authorizes the trustees of an incorporated town, after notice to the abutting property owners, to construct sidewalks in front of their property, and, upon failure of owners to construct same, to construct such improvements and assess the cost thereof to the abutting property upon a frontage basis, and to issue a tax warrant for the actual cost of labor and material, obtained at the market price, and used for such improvements, and to make such tax warrant a lien against the property therein described, contravenes neither 'section 7 nor 24 of article 2 of the Constitution; hence such statute is not invalid on that account.</p> <p>S. ELECTIONS — Primaries—Statutes—Eepeal. The Act Of March 13, 1909, entitled "An act regulating elections in cities and towns; requiring nominations by primaries; prescribing the time for such elections; repealing section 8, article 1, chapter 14 of the Statutes of Oklahoma, 1893, as amended by section 3, article 1, chapter 14, of the Statutes of Oklahoma, 1893, as amended by section 1, article 1, chapter 6, Session Laws of Oklahoma, 1897; also repealing sections 9 and 10 of article 1, chapter 14, of the Statutes of Oklahoma, 1893; also repealing sections 12, 13, 14, 15, 16 and 17 of said Statutes of Oklahoma, 1893, and declaring an emergency'’ (Sess. Laws 1909, e. 16, art. 2, p. 262) — repealed section 841, Comp. Laws 1909, which provides that the inspectors at municipal elections shall make a certified statement over their signatures of the persons elected to fill the several offices in sueh municipality, and file the same with the county clerk in the county within ten days after the date of such election.</p> <p>(Syllabus by Sharp, 0.)</p>

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by S. M. Gloyd against M. C. Morris and others, copartners doing business under the firm name of M. C. Morris & Co., contractors, and E. R. Moss, subcontractor, as debtors, for balances due on material furnished, and against the City of Okmulgee, Oklahoma, owner of real property, for foreclosure of alleged materialman’s lien on said property. Judgment for plaintiff against said debtors, and for defendant City of Okmul-gee denying lien. Plaintiff brings error.</p>

Error from County Court, Coal County; R. H. Wells, Judge. Action by J. W. Husband against the Crowley-Southerland Commission Company and J. C. Campbell, resulting in dismissal as to said Commission Company and judgment by default against Campbell, followed by petition by Campbell to vacate and set aside judgment, which petition the trial court overruled, from which Campbell brings error.

Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. Action by the Fruit Dispatch Company against W. B. Wood and another, copartners, doing business under the name of the Wood Produce Company. A demurrer to plaintiff’s evidence was sustained, and he brings error.

<p> Error from District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action by A. J. Seay against the Commercial Union Assurance Company, Limited, of London, England. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by W. H. 'Tyron against the Central Light & Fuel Company and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Okfuskee County; W. A. Huser, Special Judge. Action by J. S. Blasdel against P. M. Einks for damages for trespass of defendant’s cattle on plaintiff’s crop. Judgment for defendant, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Presentation for Review — Petition in Error. This court will not review an alleged error of a trial court, unless the error complained of is assigned for revievr by tbe petition in error, as well as by the motion for a new trial.</p> <p>2. SAME — Excessive Recovery — Assignment of Error — Motion for New Trial. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon contract, cannot be considered on appeal, unless such error is assigned in the motion for a new trial as a ground therefor.</p> <p>3. SAME' — Usury—New Trial — Motion—Essentials. An action to recover usury is one arising on an implied contract; and, where the plaintiff, in an action to recover usurious charges, complains of the amount of the verdict in his favor, it is necessary that the motion for a new trial contain as a ground therefor the fifth subdivision of section 5825, Comp. Laws 1909 (Rev. Laws 1910_ sec. 5033). . .</p> <p>4. SAME — Excessive Keeovery — Presentation for Keview — Motion for New Trial. Where the evidence is sufficient to sustain a verdict for a greater sum than that found by the jury, this court will not examine the record to ascertain whether the sum so found was the eorreet amount, where error in the assessment oí the amount of recovery is omitted from the motion for a new trial.</p> <p>(Syllabus by Sharp, 0.)</p>

Br-ror from County Court, Pottazvatomie County; Ross P. Lockridge, Judge. Action by Onie M. Kelley, beneficiary, against the National Union, a life insurance corporation, on a policy. Judgment for plaintiff, and defendant brings error.

Error from District Court, Tulsa County; L. M. Poe, Judge. ' Action by W. D. Close against the St. Louis & San Francisco Railroad Company for damages for delay in shipment of freight. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Seminole County; Tom D. McKeozvn, Judge. </p> <p>Action by H. G. Lillard against the Chicago, Rock Island & Pacific Railway Company for damages. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Muskogee County; Thomas W. Leahy, Judge. Action by J. C. Cobb against the St. Louis & San Francisco Railroad Company, for loss of suit case. Judgment for plaintiff, and defendant brings error.

<p> Brro'r from District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>Action by the Fidelity Trust Company against Solon Bracken and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Mattie R. Fiedler against John Fiedler. From a judgment for plaintiff sustaining a demurrer to certain paragraphs of defendant’s answer, defendant brings error.

<p>GARNISHMENT — Judgment—Operation—Pleading aa Defense. An answer to a suit for debt, which pleads in bar that a judgment in attachment in another state has been rendered against defendant as a garnishee, is demurrable, unless it shows affirmatively that the demand sued for and that adjudicated in the garnishee proceedings were identical. ,</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by John J. McCrory against the Indiana Oil, Gas & Development Company and others. Judgment for plaintiff, and the defendant named brings error.

<p>Error from County Court, Lc Flore County; P. C. Bolger, Judge.</p> <p>Action in attachment by John A. and M. C. Lowery, partners, doing business as Lowery Bros., against M. L. Glaze, Robert E. Lee, interpleader. Judgment for plaintiffs, and Robert E. Lee, interpleader, brings error.</p>

Error from County Court, Payne County; W. PI. Wilcox, Judge. Bastardy proceedings by the State, on the complaint of Susie M. Robinson, prosecuted by D. W. Weldon, County Attorney of Payne County, against Nicholas A. Anderson. Judgment for plaintiff, and defendant brings error.

<p> lirror from District Court, •Canadian County; John J. Carney, Judge. </p> <p>Action by the Northwest Thresher Company against W. E. McNinch. Judgment for defendant, and plaintiff brings error.</p> <p>On the 26th day of September, 1906, the Northwest Thresher Company instituted this suit on a promissory note for $150. It appears from the record that the plaintiff, through its agent, George Gill, took an order from one J. R. McClung, for a threshing machine; under the terms of said order he was required to furnish farmers’ notes in the sum of $1,000 as collateral security to said indebtedness, payable directly to the Northwest Thresher Company, and said notes contained a clause that the same were executed in consideration of credit extended to the said J. R. Mc-Clung in the purchase of said machine. Prior to that time, a contract was entered into between the parties, providing for the execution of said note by the defendant upon the delivery of the threshing machine to McClung, and the note sued on was executed under said contract. The defendant answered on the 24th day of October, 1906, a copy of which answer is found in Mc-Ninch v. Northwest Thresher Co., 23 Okla. 388, 100 Pac. 524, 138 Am. St. Rep. 803, the defense being: First, a failure of consideration other than that stipulated in the -writing; and second, that by fraud and mistake of fact the written agreement stipulates for a particular consideration which was not the true consideration, and that the true consideration failed. This answer was amended on December 21, 1906; a demurrer was sustained to the first defense, and a motion to make more definite and certain to the second defense, and the cause appealed to this court, and decided in the case of McNinch v. Northwest Thresher Co., supra, sustaining the demurrer to the first defense, and holding that the defendant had measurably complied with the order to make more definite and certain as to the second defense. On August 19, 1909, defendant again amended his answer by alleging, in substance, the same as his former allegation, and again, on December 27, 1909, defendant amended his answer- by filing an amendment to, and substitution for, the second count of his answer. Issues were joined by the plaintiff, and on January 10, 1910, the trial was commenced. 'At that time there was no allegation of mutual mistake of law. During the first day of the trial the defendant again filed an amendment to his answer, setting forth an alleged defense relative to the execution of the contract dated May 12, 1905, and again, during the trial defendant asked and was permitted to file an additional amendment to his amended answer, by alleging the defense of fraud and mistake. Issues were joined on these amendments and the cause submitted to the jury; after the instructions were given and the argument under way, the defense asked leave to file an amendment,-alleging “mutual mistake of law,” in order to conform his answer to the facts proven, which was allowed by the court. The court then withdrew from the jury all the grounds of defense, except mutual mistake of law. The facts relating to mutual mistake of law will be found in the body of the opinion. All the amendments were made over the objection of the plaintiff, the cause was submitted to a jury, and resulted in a verdict in favor of the defendant, and the plaintiff brings the cause here for review.</p>

<p>ACTION ON NOTES. Por syllabus, see Northwest Thresher Co. v. Mc-Ninch, ante, 140 Pac. 1170.</p> <p>•(Syllabus by Rittenhouse, C.)</p>

<p>ACTION ON NOTES. For syllabus, see Northwest Thresher Co. v. McNinch, ante, 140 Pae.' 1170.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>ACTION ON NOTES. For syllabus, see Northwest Thresher Co. v. McNinch, ante, 140 Pao. 1170.</p> <p>(Syllabus by “Rittenhouse, 0.)</p>

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Action by the Northwest Thresher Company against John Washichek. Judgment for defendant, and plaintiff brings error.</p>

<p>ACTION ON NOTES. For syllabus, see Northwest Thresher Co. v. McNinch, ante, 140 Pae. 1170.</p> <p>(Syllabus by Bittenhouse, C.)</p>

<p>Error from District Court, Canadian County; „ John J. Carney, Judge.</p> <p>Action by the Northwest Thresher Company against L. Basey. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Seminole County; T. S. Cobb, Judge. </p> <p>Action by Harrison Eslick against E. E. Streater. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, McCurtain County; T. J. Barnes, Judge. Action by PI. A. Higgs against the St. Louis & San Eran-cisco Railroad Company. ' Judgment for plaintiff, and defendant brings error. This action was commenced before a justice of the peace in McCurtain county, asking for damages against the railroad company.

<p>1. FRAUD — Elements—Burden of Proof. To substantiate the allegation of fraud, the plaintiff must prove that the defendant made a material representation which was false, and known to be false at the time, and made with the intention that it should be acted upon by the plaintiff, and that plaintiff relied upon such false representation to his injury.</p> <p>2. CORPORATIONS —■ Stock Subscription — Cancellation for Fraud— Sufficiency of Evidence. Evidence examined, and held not sufficient to support the allegation of fraud.</p> <p>3. INSURANCE — License of Insurance Company — Prior Acceptance of Stock Subscription. A domestic life insurance company has the authority to accept a contract of subscription to its capital stock, after its incorporation and before it has been granted a license to commence business under section 3756, Comp. Laws 1909 (Rev. Laws 1910, sec. 3439), such acceptance being" necessary in order to show that the corporation has a paid-up capital of not less than $100,000, as provided by section 3765, Comp. Laws 1909 (Rev. Laws 1910, sec. 3448); the acceptance of sueh subscription to the capital stock being a part- of the initial organization of the compitny, and not the doing of business as ■ contemplated by section 3756, supra.</p> <p>4. CORPORATIONS — Stock Subscription — Right to Cancel. After a valid subscription to the capital stock of a corporation has 'been made, either before or after organization of the corporation, and such subscription has been accepted by the organized corporation, there can be no cancellation or -withdrawal from the obligation without the consent of the corporation and all the stockholders, except on the grounds of fraud or mistake.’</p> <p>(Syllabus by Rittenhoiise, C.)</p>

Error from County Court, Johnston County; Nick Wolfe, Judge. Action by L. A. Diggs against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. This action was brought to recover damages for delay in transportation of household goods from Milburn, Okla., to Crusher, Okla.

Error from County Court, Johnston County; Nick Wolfe, Judge. Action by G. E. Teese against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. This is an action brought by plaintiff for personal injuries, asking judgment for $1,000, against the defendant, the Chicago, Rock Island & Pacific Railway Company. The material allegations of the plaintiff’s petition are as follows: “Second.

<p>1. SALES — Breach of Warranty — Damages — Purchase Price — -Evidence. Under the general rule, the measure of damages recoverable for a breach of- warranty of personal property is the difference between the actual value of the property at the time of sale and what its value would have been if it had conformed to the warranty. But, in the absence of other evidence, the purchase price is prima facie its value as warranted.</p> <p>2. TRIAL — Instructions—Pleading—Express Warranty — Breach. In an action for damages for the breach of an express warranty, where the court instructs the jury on the question of an express warranty as alleged in the petition, and also instructs the jury on the question of an 'implied warranty, held, that it was error to give an instruction as to an implied warranty, because it permits a recovery for the breach of an implied warranty not alleged in the petition, the nature and terms of which implied warranty were not alleged in the petition or defined in the instruction.</p> <p>3. SAME. Where the plaintiff relies in his pleadings upon an express warranty, the court should limit the recovery to a breach of the express warranty.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>TAXATION — Limitation of Amount — Statutory Provision — Injunction. For syllabus, see St. Louis & San Francisco Railroad Co. v. Thompson, County Treas., et al., 35 OIda. 138, 128 Pac. 685.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>APPEAL AND ERROR — Verdict—Evidence. Where there is competent . evidence reasonably tending to support the verdict of the jury, _ under proper instructions from the court, this court will not disturb the verdict.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Court, Rogers County; H. Tom Right, Judge. </p> <p>Replevin by the De Hart Oil Company against Earl Smith and another.</p>

<p>APPEAL AND ERROR — Briefs—Filing—Time. Where plaintiff in error does not file brief within the time allowed by rule 7 of this court (38 Okla. vi, 137 Pae. ix), nor before ease is due to be taken on submission, the appeal will be treated as abandoned, and dismissed.</p> <p>(Syllabus by Thacker, C.)</p>

<p> Error from District Court, Tulsa County; E. M. Poe, Judge. </p> <p>Action by M. A. Breckinridge against the Board of County Commissioners of Tulsa County, Okla., on salary claim. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from County Court, Greer County; Jarret Todd, Judge.</p> <p>Action by John G. Wills against J. R. Buzbee. From a judgment for defendant, plaintiff brings error.</p>

Error from County Court, Greer County; Jarret Todd, Judge. Action by the City State Bank of Mangum against G. M. Kiiipe and the Farmers’ State Bank of Granite, garnishee. Judgment for plaintiff, and garnishee brings error.

<p> Error from County Court, Bryan County; J. E. Rappollee, Judge. </p> <p>Action by Ward Kinney against Chas. E. MePherren. Judgment for defendant, and plaintiff brings error.</p>

<p>1. HOMESTEAD — Exemption. Tlie homestead of a. family, whether title to the same shall be lodged in or owned by the husband or wife, shall be reserved to every family in the state, exempt from attachment or execution, and every other species of forced sale for the payment of debts.</p> <p>2. SAME — Country Homestead — Extent—Ownership. Under section 1, art. 12, of the Constitution, and section 3346, Comp. Laws 1909 (Rev. Laws 1910, see. 3342), the homestead of a family, not in a city, town or village, may consist of 160 acres of land, and may be owned by either husband or wife, or by both jointly.</p> <p>3. SAME — Termination—Act of Husband. When property has once been impressed with the homestead character, no act or omission on the part of the husband, without the consent of his spouse, can result in an abandonment of the homestead by the family. The homestead is for the benefit of the entire family, and such joint interest is to be regarded as paramount to the rights of any individual member thereof.</p> <p>4. INSANE PERSONS — Homestead—Abandonment—Consent. An insane person is incapable of giving her free consent to an abandonment of the homestead, although confined in an insane asylum in another state.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Court, Osage County; C. T. Bennett, Judge. </p> <p>Action by F. M. Watkins against W. G. McConnell. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Murray County; R. McMillan, Judge. Suit by Mary Clough against the City of Sulphur, Okla., and Georgia Ward. Judgment for defendants, and plaintiff brings error. This,is an action to enjoin the defendants from constructing a cement sidewalk in front of lot 4, in block 42, of Sulphur, Okla.

Error from District Court, Muskogee County; R. P. de Graffenried, Judge. Action by A. A. McKellop and wife against P. W. H. Dewitz and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Le Flore County; P. C. Bolger, Judge. </p> <p>Action by- School District No. 92, Le Flore County, against School District No. 38, Le Flore County. Judgment for plaintiff granting new trial, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; Echvard D. Oldfield, Judge. Action by Mary Van Voorhis and others, heirs of William Bushman, deceased, and G. M. Young, deceased, against Newton Avey and others. Judgment for the Young heirs, and defendants bring error.

<p>1. TAXATION — Back Tax Proceedings — Appeal to County Court— Statutes — Other Remedy — Injunction. Section 1, of chapter 81, art. 9, Sess. Laws 1908, allowing an appeal to the county • court from the action of the county treasurer in assessing property thereunder, did not, by implication, repeal section 4440, Wilson's Rev. &. Ann. St. 1903 (section 4881, Rev. Laws 1910), of the Code of Civil Procedure, permitting an injunction to restrain the levy and collection of an illegal tax.</p> <p>2. SAME — Illegal Assessment — Remedies of Taxpayer. Where the taxes sought to be assessed or collected under the above chapter are illegal, the aggrieved party had two concurrent remedies; one by appeal from the action of the treasurer to the county court, the other by an injunction - as prescribed in section 4881, Rev. Laws 1910.</p> <p>3. SAME — Back Assessment — Corporation—Capital Stock. Where a milling corporation has disposed of all of its capital stock and invested the proceeds in tangible property, real and personal, and an attempt is made to assess its capital stock to the corporation, as omitted property, under the provisions of the Tax Ferret Statute, such attempt is illegal, and not warranted by the statutes, and the action of the treasurer maldng such assessment or attempt to collect the taxes thereon may’ be restrained by injunction.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p> Error from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>Action by Mary C. Barnes against Sam P. Nicholson. Judgment for plaintiff, and defendant brings error.</p>

Brror from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Action by the State against Thomas H. Wright and others, judgment for plaintiff, and defendants bring error.

<p>1. UNITED STATES MARSHALS — Duties—Performance—Return of Execution — Omission—Liability on Bond. Under section 3061, Mansf. Dig', of Ark., extended over and in force in the Indian Territory prior to statehood, a United States marshal, who received an execution for service and failed to return the same “within 60 days from its date,” the sureties on his official bond were liable at the suit of an execution creditor for the amount of the execution, unless the failure to make return was caused by the act, instructions, or was waived, by such creditor.</p> <p>2. SAME — Execution — Failure to Return — Liability — Measure of Damages. In such action the liability is not limited to the injury sustained by the execution creditor by a failure to make the return, but is fixed by statute in the amount of the execution and six per cent, interest thereon.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from County Court, Cherokee County; J. E. Parks, Judge. Mandamus by William Boorigie against Carl M. Camp, a justice of the peace. Judgment was for the defendant, and plaintiff brings error.

<p>1. CORPORATIONS — Pleading — Filing Out of Time — Discretion— Action of Stockholder — Sufficiency of Petition. The court erred in No. 3254 in overruling the demurrer to the petition. And also in No. 4071 in not permitting defendants to file answer and make defense.</p> <p>2. PLEADING — Filing Out of Time — Discretion. The question of filing pleadings out of time rests largely within the discretion of the trial court, but this discretion is a sound judicial one, dependent upon all the circumstances, and must never be used arbitrarily or capriciously.</p> <p>3. CORPORATION'S — Stockholders—Right of Action. The rule is that shareholders cannot, ordinarily, sue in equity to redress wrongs done to the corporation. The ordinary remedy for such injuries is to be sought primarily through corporate action. But if the directors are guilty of a breach of trust, injurious to the corporate assets, or to the rights of the shareholders or some of them, and if the corporation refuses to institute proper proceedings to restrain or redress such injuries, one or more of the shareholders may proceed in their individual names. In such case, however, it is necessary that the petition contain aver-ments sufficient to create an exception to the general rule, and to establish in petitioners the right to thus proceed.</p> <p>(Syllabus by Brewer, C.)</p>

<p>Brror from District Court, Okmulgee County; Wade S. Stanfield, Judge.</p> <p>Action by the St. Louis & San Francisco Railroad Company against S. L. Skelton. Judgment for defendant, and plaintiff brings error.</p>

<p>1. INSURANCE — Action on Policy — Premature Suit. In an action on a policy which contains the provision that “in no case shall the company be.liable until 60 days after notice, ascertainment and proof of loss,” where suit is instituted before the expiration of 60 days after proof of loss, and then after the expiration of 60 days the plaintiff amends his petition, and thereupon the insurer hies its answer setting up the several grounds of defense and denying liability, the action will not then be held to have been prematurely brought, but may be maintained on the amended petition.</p> <p>2. APPEAL AND ERROR — Objections Waived. Where a jury is permitted to take the pleadings into the jury room, and no objection is made or exception taken by either party in the court below, an objection to the jury’s so doing will not be heard in this court.</p> <p>3. INSURANCE — Action, on Policy — Appraisement—Waiver. Where a policy contains a provision that “in case of loss and failure to agree on the amount of loss, there shall be an appraisement by three appraisers, one of whom to be chosen by the insured, one by the company, and the third by the two thus chosen,” and such appraisement is made a condition precedent to an action, held, it is as much the duty of the insurer as the insured to demand an appraisement, and in case no appraisement is requested by either party, and the company denies liability and refuses to pay the loss, the insured will not be precluded from his right of' recovery by reason of his failure' to demand an appraisement.</p> <p>(Syllabus by Harrison, C.)</p>

<p>APPEAL AND ERROR — -Abandonment of Appeal — Reversal. Where a. defendant in error has failed to file briefs and appears to have abandoned the appeal, and where the grounds urged for reversal appear to be supported by the authorities cited in plaintiff in error’s brief and by the record, tlie judgment will be reversed.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>1. LIMITATION OF ACTIONS — Suspension—“Legal Disability’ ’— Adjudication in Bankruptcy. An adjudication in bankruptcy, under Act July 3, 1898, e. 341, 30 St. at L. 544 (D. S. Comp. St. 1901, p. 3418), as amended, does not suspend the running of the general state statute of limitations as to provable claims, for the reason that such adjudication does not put the creditor under a “legal disability,” within the meaning of section 4658, Eev. Laws 1910, and does not relieve him from filing his suit before the statute operates as a bar.</p> <p>2. SAME. On November 25, 1904, T. W. M. Co. sold S. a bill of merchandise; a month later S. was adjudicated a bankrupt. T. W. M. Co. filed their claim, and it .was allowed and participated in dividends from, the bankrupt estate. In September, 1909, while the application of the bankrupt for a discharge was pending, suit was filed in the state court on the original claim for goods sold. By agreement this suit was continued until 1910, until the court of bankruptcy acted on, and refused a discharge. Held, that the claim was barred by the three-year statute of limitations.</p> <p>3. SAME — Acknowledgment—Voluntary Payment — Bankruptcy. The payment to a creditor by a trustee of a bankrupt debtor of dividends ordered paid by a court -of bankruptcy is not such a voluntary part payment by the debtor as will establish a new point from which the statute of limitations will run, unde,r section 4663, Eev. Laws 1910.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by Dean Ishmael and Minerva Ishmael, his wife, against C. B. Plyde and others. Judgment for plaintiffs, and defendants bring error.

<p>JUSTICES OF THE PEACE — Appeal—Parties. A judgment was rendered against two defendants in a cause tried before a justice of the peace. One of the defendants appealed to the county court in his own name, without joining the other. The appeal was dismissed by the county court, upon the ground that the county court was without jurisdiction to entertain the appeal, because the appellant did not mate his codefendant a party thereto. Held reversible error, following Bernard v. Douglas-Whaley Gro. Co., 31 Olda. 124, 120 Pae. 563.</p> <p>(Syllabus by Brewer, 0.)</p>

jfrror from District Court, Stephens County; J. T. Johnson, Judge. Action by Minnie H. Howell against William T. Howell. Decree was entered granting divorce but upholding prior settlement of property rights, and plaintiff brings error.

<p>ATTORNEY AND CLIENT — Action for Services — Question for Jury— Directing Verdict. Tlie evidence raises questions of fact that ought to have been submitted to the jury; and therefore, when the court instructed the jury to find for plaintiff, it committed reversible error.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from County Court, Greer County; Jarrett Todd, Judge. </p> <p>Action by J. A. Showalter against C. T. Webb. Judgment for defendant, and plaintiff brings error.</p>

Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge. Action upon an accident insurance policy by Allen McDowell against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Garvin County; W. B. M. Mitchell„ Judge.</p> <p>Action by Lizzie T. Herrod against the Supreme Lodge of Heralds of Liberty, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by T. S. Cobb against the Oklahoma Publishing Company, a corporation, for libel. Judgment for defendant, and plaintiff brings error.

Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge. Action by Thomas R. Hall against C. E. Shuler and others. Judgment for plaintiff against Shuler and PI. L- Kerns, and they bring error.

<p>1. CHATTEL MORTGAGES — Fraud.—Pleading Defenses — Fraud in. Procurement. In an aetion on a promissory note and to foreclose a mortgage given to secure the payment thereof, an answer, which alleges that such note and mortgage were procured through fraud and misrepresentations, and shows clearly of what, the acts of fraud consisted, and that such fraud was the sole inducement to the execution of the instruments, and that defendant received no consideration, and that plaintiff (a purchaser before maturity) had full knowledge of and participated in the alleged fraud, is sufficient to constitute a defense against suchi note and mortgage in the hands of such purchaser.</p> <p>2. FRAUD — Evidence—Admissibility. “In determining the existence of fraud any evidence, direct or circumstantial, whieh is competent by other rules of law, and which in the opinion o.f the court has a legitimate tendency to prove or disprove the allegations in the issue, is admissible. Great latitude is allowed in the introduction of evidence, the extent of the investigation being largely in the discretion of the trial court, and objections to circumstantial evidence on the ground of irrelevancy are not favored. Circumstantial evidence to show fraud may well bo admissible when taken as a whole, although some of the circumstances, considered separately, would be incompetent. The whole transac- . tion involving the alleged fraud may be given in evidence." 20 Cyc. 110.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. CORPORATIONS — Acts of Stockholders — Internal Affairs — Estop-pel. The doctrine of equitable estoppel applies to the internal concerns of stock corporations. Saving, so far as public policy and the interests of creditors and other third parties are involved, the stockholders may bind themselves inter sese and in favor of the corporation by their own acts and agreements; and what will bind all the stockholders with respect to an obligation from the company to one of its members, will bind the company as such.</p> <p>2. SAME. Unanimous consent and acquiescence of the stockholders, acted on by the parties concerned to such extent as to materially change their position, preclude the assenting stockholders as . individuals, and the corporation as such, from afterwards setting-up legal informalities in matters of internal concern affecting only the interests of the stockholders, to the overthrow of rights that have been acquired on the faith of the consent and acquiescence.</p> <p>3. TRIAL — Pleadings — Burden of Proof — Arguments of Counsel— Right to Open and Close. The burden of proof is determined by the pleadings, and not by admissions of testimony made during the progress of the trial, and the burden of proof carries with it the right to open and close the' argument to the jury.</p> <p>4. SAME — Amended Answer — Admissions. When, at the commencement of the trial, the defendant makes certain admissions of testimony and without objection assumes the burden of proof and proceeds to introduce his evidence, and his right to open and close the argument is questioned at the close of the testimony and resisted on the ground that the answer had not been amended in conformity to the admission made, held, that the parties having-treated the answer as amended, the court should do the same and sustain the right claimed to open and close in the party assuming- the burden of proof at the trial.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Greer County; G. A. Brown, Judge. </p> <p>Action by Jarrct Todcl against the City of Mangum. a municipal corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Caddo County; Prank M. Bailey, Judge. </p> <p>Action by Evan C. Martín, a minor, by his next friend, IT. L. Martin, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, McClain County; R. McMillan, Judge. Action by 1>. C. Wadlington and another, a partnership known as Wadlington & Wadlington, a firm of attorneys, against the guardian of the estate of Hoyt and Ewing Parnell, minors; for legal services. Judgment for plaintiffs, and defendants bring error.

Error from District Court, McClain County; K. McMillan, Judge. Action by John Marsh against W. TT. Nichols and others to foreclose a real estate mortgage, and, from judgment on an issue raised under a cross-bill by J. M. Page, one of the defendants, the Valle)'- Abstract Company and Holmes & Hibbard, defendants in Page’s cross-action, bring error.

Error from Superior Couri, Garfield County; Dan Hueti, Judge. Action by J. W. Collins aga-inst the Texas Company. Judgment for the plaintiff, and the defendant brings error.

<p>1. EJECTMENT — Town Site — Title to Lot — Sufficiency of Evidence. Where plaintiff introduces evidence in an action of ejectment to show that the town-site commission scheduled to William Campbell of Ada, Tnd. T., lot 2 in block 93, town of Okmulgee, under section 12 of the Creek Agreement of 1901 (Act March 1, 1901, e. 676, 31 St. at L. 866), and shows by such evidence that plaintiff had the property scheduled in the name of William Campbell through his agent, Jesse 11. Hill, and the plaintiff paid the general taxes, paving assessments, and the initial payment of ten per cent, of the amount due on the appraisement, and improved said property by constructing- a ten-foot sidewalk in front of said lot, and had possession of the same from 1902 until 1910, at which time the defendant took possession, held, that such facts are sufficient to show a jiaramount title to said lot in the plaintiff.</p> <p>2. - APPEAL AND ERROR — Verdict—Evidence. Where a cause is tried without the intervention of a jury, upon controverted questions of fact, and there is evidence reasonably lending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence, and, when the finding is general, it includes all facts necessary to support the claims of the party in whose favor the judgment is rendered, and upon appeal this court will not review the evidence, if it reasonably tends to support the issues upon which such finding is based, to determine the sufficiency thereof. McCann v. McCann, 24 Oltla. 271, 103 Pac. 694.</p> <p>3. PUBLIC LANDS — Town Site — Patent to Lot — Conclusiveness. Where a patent to a lot,’ issued under section .12 of the Creek Agreement of 1901 (Act March 1, 1901, e. 676, 31 St. at L. 866), has been given by the sovereignty having- the right to make it, without any provision having been made in the patent, or by the law allowing a third party to inquire into its fairness, as between the grantee and the sovereignty, a third party cannot raise, in an action of ejectment, the question of fraud in the procurement of such patent.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from District Court, Jackson County; Prank Matthews, Judge. Action by the state of Oklahoma against K. S. Hammett and another. Judgment for the plaintiff, and defendants bring error. This is an action brought by the state of Oklahoma against K. S. Hammett and S. S. Kouri, for penalties for the violation of section 4191, Comp.

<p>Error from District Court, Oklahoma County; W. R. Taylor, Judge.</p> <p>Action by Myrtle Hartzell against PL E. Hartzell and M. S. Plartzell. Judgment for plaintiff, and defendant M. S. Hartzell brings error.</p>

<p>1. NEGLIGENCE — Proximate Cause — Question for Jury. In a suit for personal injuries the question of whether or not defendant’s negligence is the proximate cause of the injury sustained should be left to the jury, where the evidence is conflicting, or where men of ordinary intelligence might differ as to the effect of the evidence on the point.</p> <p>2. SAME — Circumstantial Evidence. The question of proximate cause may be determined from circumstantial evidence.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Tulsa County; N. G. Gubser, Judge. Action by Henry M. Dreyfus and others, doing business as Dreyfus Bros., against the St. Louis & San Francisco Railroad Company, for damages. Judgment for plaintiffs, and defendant brings error.

<p> Error from Superior Court, Grady County; Will Linn, Judge. </p> <p>Action by Mrs. Ardie King, administratrix, against G. L. King and W. C. King. Judgment for plaintiff, and defendants bring error.</p>

<p> Rrror from District Court, Carter County; Stillwell H. Russell, Jtcdge. </p> <p>Action by G. H. McKenney against Arch Carpenter and thirty-four others. Judgment sustaining demurrer to petition, and plaintiff brings error.</p>

Error from District Court, Bryan County; A. H. Ferguson, Judge. Action by A. E. Manning, special administrator of the estate of Peter Maytubby, deceased, against Tabitha Maytubby. Judgment for defendant, and plaintiff brings error.

<p>DEEDS — Prior Contract — Merger in Deed. Where the purchaser accepts a deed from his vendor, pursuant to a contract of sale, which contract represents that the incumbrance against the premises amounts to $1,280, and there is evidence tending to show that the incumbrance is $1,450, held, in an action on the contract, the representations relative to the amount of incumbrance, in the absence of fraud and of express or implied covenants, are merged in the deed.</p> <p>(Syllabus by Eittenhouse, C.)</p>

<p> Error from County Court, Seminole County; T. S. Cobb, Judge. </p> <p>Action -by T. B. McCoy against the Farmers’ National Bank of Wewoka. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Ground for Reversal — -Trial Docket. Section 5832, Comp. Laws 1909 (Bev. Laws 1910, sec. 6164), requires that the clerk of the court shall make out a trial docket at least twelve days before the first day of each term of the court, and section 5837, Id. (Bev. Laws 1910, sec. 6169), requires that a copy of such docket shall be made for the use of the bar before the first day of the term, but a judgment' will not be reversed merely upon the contention that such trial docket was not made out as required by law, when it does not appear from the record that such contention is true or that the complaining party was substantially prejudiced thereby, if such contention were true.</p> <p>2. SAME — Review—Setting of Cases — Discretion. In the calling and setting or resetting of cases for trial, a trial judge must of necessity be vested with a reasonable scope of discretion, and a judgment will not be reversed because the court of its own motion set a case for trial at a later date than that on which it was set by the clerk of the court in making up its trial docket, nor because the court may have, of its own motion, reset such case for a later day in the term, where no abuse of discretion is shown.</p> <p>3. CONTINUANCE — Absent Witnesses — Diligence to Procure — Discretion. Where a record shows that the trial docket made up by the clerk show's a case to have been set for the 6th of June, and that when such cause is called the eourt of its own motion set it down for trial on the 15th, and then on the 15th reset it for the 19th, and the record shows that the complaining party was present at each calling of the case and made no effort to prepare for trial, it was not an abuse of discretion to overrule a motion for continuance because of absent witnesses, where no diligence had been show'n to procure .the attendance of such witnesses.</p> <p>4. TRIAL — Refusal of Instructions Covered. Although requested instructions may correctly state the law, yet, if the law applicable to the issues involved in the case is fairly and substantially given by the eourt in its charge, a judgment will not be reversed because of refusal to give such requested instructions.</p> <p>5. CARRIERS — Injury to Passenger — Petition. Where the allegations in a petition show that the plaintiff was a passenger on defendant’s train by right of a ticket regularly purchased from defendant’s agent, and shows that while thus riding on such train, and without any fault on plaintiff’s part, the train ran off of the track, and that the coach in which plaintiff was riding was turned over, and that plaintiff sustained severe injuries, and shows the extent thereof and of what they consisted, and that such injuries were the proximate result of the derailment and overturning' of such coach, and that such derailment and overturning of such coach was due to, and the proximate result of, the rotten condition of the cross-ties, and charged the carrier with carelessness and negligence in operating such train over such ties, and that the derailment and the injuries sustained therefrom were the proximate result of the carrier’s negligence and carelessness, such statement of facts is sufficient to constitute a cause of action for negligence.</p> <p>6. SAME — Duty to Passengers — Negligence—What Constitutes. Section 800, Rev. Lawss 1910, provides: “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, and must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill”— and a violation of the duty thus enjoined by law, or a failure to exercise the degree of care imposed by law for the protection of passengers, and failure to exercise a reasonable degree of skill to that end, constitutes negligence per se.</p> <p>7. SAME — Injury to Passenger — Negligence—Burden of Proof. Where the plaintiff has shown by competent evidence, to the satisfaction of the jury, that she was a passenger on defendant’s train, and that such train was derailed, and that such derailment was proximately caused by the decayed and rotten condition of the cross-ties and the defective, careless, and negligent manner in which the rails were spiked to the ends of such cross-ties, and shows to the satisfaction of the jury that the injuries complained of and the extent thereof were the direct and proximate result of such derailment, she has made a prima facie case which raises a presumption of negligence, and the burden is upon the carrier to overcome such presumption to the satisfaction of the jury.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>1. EVIDENCE — Parol Evidence — Admissibility. Parol evidence is not admissible to vary the terms of a subscription to the capital stock of a corporation.</p> <p>2. CORPORATIONS — Subscriptions to Stock — Secret Agreement. A secret oral agreement between the defendant and the promoter, whereby the promoter was to resell defendant's subscription, and the defendant was thereby to be discharged from liability under said subscription, was, as to the plaintifE and other subscribers, a fraudulent agreement and does not constitute a defense to an action for such subscription.</p> <p>3. SAME — Action on Subscription — Defenses. A subscriber to the capital stock of a corporation cannot defeat his liability on such subscription by showing that the corporation was not, at the time of the trial, actively engaged in the business for which it was organized.</p> <p>(Syllabus by Rittenhouse, 0.)</p>

<p>APPEAL AND ERROR — Dismissal—Insufficient Record. Por syllabus see Brooks et al. v. United Mine Workers of America et al., 36 Okla. 109, 128 Pae. 236.</p> <p>(Syllabus by Rittenhouse, 0.)</p>

<p> Brror from Superior Court, Muskogee County; Farrar L,- McCain, Judge. </p> <p>Action by Charles A. Williams against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Murray County; ■R. McMillan, Judge. Action by Dennis Smith against the Dolese Brothers Company, a corporation, for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>1. WATERS AND WATER COURSES — Diversion of Surface Water —Injunction. An injunction should not be issued to restrain one proprietor from diverting surface water from his lands or jiassing it on to the next proprietor unless the evidence clearly shows that injury will result to the adjoining proprietor.</p> <p>2. SAME — Right to Divert. At common, law surface water was regarded as a common enemy against which each proprietor might protect himself. He might send it back or pass it on to the next adjoining proprietor without liability.</p> <p>3. SAME. The common law governing the diversion of surface water as adopted and applied in this state has been modified and restricted to this extent, namely, that each proprietor may divert the same, cast it back or pass it along to the next proprietor, provided he can do so without injury to such adjoining proprietor. Under this rule of law no one is permitted to sacrifice his neighbor's property in order to protect his own.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>JUDGMENT — Res Judicata — Schools and School Districts. Where one taxpaying resident of a consolidated school district sues the officers thereof and secures an order restraining them from moving or disposing of the schoolhouses in the separate districts from which the consolidated district was formed, and directing them to hire teachers and maintain schools in each of the separate districts until the further order of said court, and an appeal is perfected from such judgment to this court, and afterwards, upon authority of a majority of the electors of the consolidated district, the appeal is dismissed, and such judgment becomes final, held, that in another suit against those officers commenced in the superior' court of said county by another taxpaying resident of the district seeking to restrain them from maintaining schools in the separate schoolhouses, an answer filed by the officers of the consolidated district setting up the former judgment of the district court states a good defense, and a general demurrer thereto was properly overruled.</p> <p>(Syllabus by Galbraith C.)</p>

<p>Error from District Court, Rogers County; T. L. Brown, Judge.</p> <p>Action by John T. Ezzard and C. B. Ploltzendorff against William W. Evans and the United Oil Company. Judgment for the defendants, and plaintiffs bring error.</p>

<p>1. WATEES AND WATEE CORTESES — Surface Water — Eights of Landowners. An owner of land has no right to gather up and accumulate surface water and conduct same in large volume onto the land of an adjoining proprietor to his damage.</p> <p>2. JUSTICES OF THE PEACE — Pleading—Sufficiency. Pleadings in a justice of the peace court are construed very liberally, and the same exactness and particularity is not required as in pleadings filed in courts of record.</p> <p>3. MUNICIPAL COEPOEATIONS — Claim for Unliquidated Damages — Failure to File — Effect. The fact that a claim for unliqui-dated damage arising out of a tort is not made out, itemized, verified, and filed for allowance or rejection with the proper municipal officers does not prevent a suit being maintained thereon; in such ease the plaintiff is penalized to the extent that he cannot recover costs. Section 60?, Eev. Laws 1910.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. BAIL — Appearance Bond — Validity. An appearance bond voluntarily entered into, and upon which the principal has secured release from custody, is not rendered void by failure of the judge or clerk taking same to indorse thereon the word “ approved.'’</p> <p>2. BAIL — Forfeiture. The essential requirements in declaring a forfeiture of a bail bond are that the court should find as a fact that the bond had been executed in a particular case, and that there had been default in some one of the conditions written in the bond.</p> <p>3. SAME — Action on Bond — Collateral Attack. The judgment or order of the trial court in declaring a forfeiture of such bond cannot be collaterally attacked in a subsequent action against the principal and sureties in the bond.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>APPEAL AND ERROR — -Presentation for Review — Briefs—Dismissa? Where an appeal is duly perfected, and the cause is assigned, and regularly submitted, and then plaintiff in error fails to serve and file briefs as required by rule 7 (38 Okla. vi, 13r Pac. ix) of this court, or to offer any excuse for not doing sf such appeal will be presumed to have been abandoned, and wiP be dismissed for want of prosecution.</p> <p>(Syllabus by Galbraith, 0.)</p>

Error from District Court, Blaine County; James R. Tolbert, Judge. Petition in the county court by W. S. Love, praying that let' ters of administration issued to Emma Love in the matter of the estate of Albert W. Love, ■ deceased, be vacated, and that he be appointed administrator. From an adjudication of the district court on appeal that Emma Love was not entitled to the letters of administration, she brings error.

<p>1. INSURANCE — Action on Policy — Proofs of Loss. In an action on a fire insurance jioliey, which provides that in case of loss the insured will give immediate notice to the insurer, and within 60 days thereafter furnish proofs of loss, testimony that such proofs of loss were furnished is necessary in order to establish a cause of action, unless the same have been waived by the insurer.</p> <p>2. SAME — Waiver of Proofs of Loss — Pleading. A waiver of proofs of loss must be plea-ded in the petition in order that the evidence thereof may be admissible at the trial. Such proofs are not waived by an answer setting up other grounds as a defense to the action.</p> <p>3. SAME — Proofs of Loss — Demurrer to Evidence — Direction of Verdict. Where it is alleged in the petition that the proofs of loss were furnished as provided in the policy, these allegations are put in issue by the general denial in the answer, and, if at the trial no evidence is offered that such proofs had been furnished, there is a failure of proof, and a demurrer to the evidence is well taken on the ground that the testimony is not sufficient to support a judgment against the insurer, and the motion for an instructed verdict for the defendant is likewise well taken.</p> <p>(Syllabus by Galbraith, 0.)</p>

Error from District Court, Pottawatomie County; Charles B. Wilson, Judge. Action by the State against George M. Adams, to remove him from office. From a judgment sustaining demurrer to the State’s evidence, the State brings error.

<p>CARRIERS — Loss of Express Package — Damages. Where a trunk containing valuable articles of wearing apparel is delivered to an express company for transportation from a point in one state to a point in another, without a written declaration of the value of the trunk and its contents, but the agent of the company is advised that the contents are very valuable, and the same is accepted for shipment and no receipt or bill of lading is issued therefor, and the trunk and its contents are lost, held, the express company is liable for the reasonable value thereof.</p> <p>(Syllabus by Galbraith, 0.)</p>

Error from County Court, Tillman County; T. E. Campbell, Judge. Action by Wm. M. Caudill against P. B. Amos and E. L. Crooks for commissions on the sale of land. Judgment for plaintiff, and defendants bring error.

<p>1. RAILROADS — Grossing Accident — Contributory Negligence — Direction of Verdict. It is not error to overrule defendant’s demurrer to evidence and motion to instruct verdict, where there is evidence reasonably tending to prove negligence on its part proximately causing injury to plaintiff’s automobile at railroad crossing, notwithstanding and without regard to evidence of contributory negligence on part of plaintiff, in view of section 6, art. 23 (section 355, Williams’ Ann. Ed.), Constitution.</p> <p>2. SAME — Negligence—Question for Jury — Sufficiency of Evidence. Where defendant was backing its mail ear in conscious excess of speed limit of city ordinance, in making a street crossing, without flagman or lookout, other than a pilot, in door on inner side of curve in its track where such crossing is approached, who could not see object on opposite side of track nearer than within 35 or 40 feet of end of such car, where there is some negative evidence of failure of defendant to give requisite crossing signals and positive evidence that both whistle and bell signals were given, where evidence for plaintiff was that in approaching the crossing from sueh opposite side at a speed of four or five miles per hour the driver of its automobile, when within about twenty feet of crossing, looked, without obstruction to his view for a distance of certainly not less than 200 and probably 300 or 350 feet, in the direction from which said car approached the crossing, where neither the driver nor his companion in the automobile testified specifically whether he looked as far in that direction as the unobstructed condition of the track permitted, where, after looking in that direction and seeing no approaching train, the driver and his companion gave their attention to an engine apparently threatening to approach the crossing from the opposite direction, until, while commencing to go over defendant’s track as slow as could be done in an oblique direction in deference to previously well-known cavity between timbers on inner sides of rails and rough condition of crossing, the driver and his companion again looked in direction from which the car approached, and, discovering same at a distance of 50 or 80 feet away, attempted to get the automobile off the track onto the side from which it was approached, but, being delayed by one or both front wheels being caught in said cavity, failed to do so until mail car struck the rear end of automobile and demolished same, throwing debris onto said side of track, and where no attempt is made to slow down or stop train until automobile is knocked from track, and where driver of automobile would have had 34 seconds in which to have made crossing from where he first looked in direction from which mail car approached if same was then nearly 300 feet away and approached within said speed limit, and where he would have had only a little more than a fourth of such time if said car approached said crossing at the highest speed stated by any witness, it was for the jury to say, under proper instructions, whether defendant was guilty of negligence proximately causing the injury; and tho court did not err in overruling demurrer to the evidence nor in refusing to peremptorily instruct verdict for defendant.</p> <p>3. SAME — Crossing Accident — Discovered Peril. Where the evidence tended to show the facts stated in the second subdivision of the syllabus, and that the perilous situation of plaintiff’s automobile was discovered by defendant in time for the latter to have avoided the collision therewith and the resultant injuries thereto, the court did not err in submitting to the jury the question of "discovered peril” as a ground upon which plaintiff might recover, notwithstanding they might find him guilty of contributory negligence.</p> <p>4.- SAME — Negligence — Crossing Accident — Submission of Issues — Evidence. Where a defendant willfully and wantonly is guilty of negligence, proximately causing an injury, a plaintiff’s contributory negligence does not bar his right to recover; and, where the evidence tends to show the facts stated in the second subdivision of the syllabus, it was not reversible error for the ' court to submit to the jury under proper instructions the question as to whether plaintiff might recover upon this theory of the case.</p> <p>5. SAME — Contributory Negligence. The degree of care required of a traveler in making a railway crossing is that degree whieh a prudent person, in the same situation and under the same conditions, would ordinarily exercise, and, although its constituent elements may vary with variations in such situations and conditions, the care required is the same degree in all eases; and the driver of an automobile is not required to exercise a higher degree of care than a prudent person on foot or in a different conveyance would ordinarily exercise, whatever may be the difference in character or extent of the precautionary measures required of him to constitute that degree.</p> <p>6. TRIAL — Refusal of Instructions Covered. It is not reversible error to refuse a requested instruction embodying a correct proposition of law that is fairly embraced in another instruction given by the court.</p> <p>7. NEW TRIAL — Grounds—Compromise Verdict. Where the evidence tends to show the value of the'property to have been from $1,000 to $1,200 before the injury, and practically nothing thereafter, but where such evidence is not such as to preclude any doubt as to such' valuations, and where the verdict is for only $550, a defendant against whom such verdict is given is not entitled to a new trial upon the ground that such verdict was evidently the result of compromise.</p> <p>8. SAME — Verdict'. The principle requiring a verdict to be set aside which cannot be justified upon any hypothesis that is presented by the evidence in respect to the amount of same applies only to eases where the damages sought to be recovered are liquidated; and a verdict for unliquidated damages in an amount less than any evidence tends to show will not be set aside upon the ground that it was the result of compromise not otherwise shown.</p> <p>ON EE HEARING.</p> <p>9. EVIDENCE — Probative Effect — Inferences. An inference from testimonial evidence is permissible to the jury when, and only when, it is a probable or natural hypothesis or explanation of such evidence, and when the other hypotheses or explanations are either less probable and natural or at least not exceedingly more probable or natural.</p> <p>10. EVIDENCE — Inferences—Foundation. An inference from uncertain testimonial evidence is not ordinarily, if at all, permitted to be drawn by the jury; and an inference cannot ordinarily, if at all, be predicated upon a fact the existence of which rests upon a prior inference; but a legitimate inference must have as its base testimonial evidence that is certain, and should be based immediately thereon.</p> <p>11. RAILROADS — Crossing Accident — Discovered Peril — Submission of Issues — Evidence. An inference of actual discovery of peril in time to have avoided, by the exercise of ordinary care, the collision of the railroad ear and an automobile at a railroad crossing, predicated alone upon the facts stated in the body of this opinion, and contradicted by the otherwise unimpeached and positive testimony of the only person to and through whom it is sought to be imputed, is too improbable and wanting in reason to warrant the submission of the question of such discovery and of liability based thereon to the jury.</p> <p>(Syllabus by Thacker, O.)</p>

<p>I. CARRIERS — Failure to Furnish. Cars — Interstate Commerce. An action for damages resulting from the failure of the carrier to furnish cars for the shipment of freight within a reasonable time after the date agreed upon between the shipper and the station agent of the carrier is not prohibited by the act of Congress regulating interstate commerce (Act Feb. 4, 1887, c. 104, 24 St. at L.- 379 [IT. S. Comp. St. 1901, p. 3154]), and the amendment thereto of June 29, 1906 (Act June 29, 1906, e. 3591, 34 St. at L. 584 [IT. S. Comp. St. Supp. 1911, p. 1284]).</p> <p>"2. SAME — Interstate Commerce Act — Operation. The act of Congress regulating interstate commerce supersedes the act of the territorial Legislature on that subject.</p> <p>■3. APPEAL AND ERROR — Ground, for Reversal — Instructions—Issue. It is prejudicial error for the trial court to give an instruction covering an issue not made by the pleadings, where such instruction tends to confuse the issues, and is calculated to mislead the jury.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. EVIDENCE — Admissions by Pleading. Where a defendant to an action admits in his pleadings that the lands in controversy were allotted to Mefcey Bruner and Losanna Bruner, and that he claims title through said allottees, it is not necessary for the plaintiff to prove such admitted facts.</p> <p>2. QUIETING TITLE — Evidence—Sufficiency. Evidence examined, and held that there is sufficient evidence in the record, if true, to establish title to said lands in Eliza Fish.</p> <p>3. TRIAL — Demurrer to Evidence. In an equitable suit, tried to the court without a. jury, where there is any evidence introduced at the trial of a cause, coupled with admissions in the pleadings, which reasonably tends to establish the allegations of plaintiff's petition, it is error for the court to sustain a demurrer to such evidence.</p> <p>4. APPEAL AND ERROR — Case-Made—Service—Evidence. Where the case-made does not affirmatively show that the same was served upon the defendant in error or his attorneys within the time allowed, the fact of service of such case-made may be shown by extrinsic evidence.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action by Mrs. R. L. Wicker against'the City of Tulsa, a municipal corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Oklahoma County; John W. Hay son, Judge. </p> <p>Action by Rebecca A. Noyes against P. J. Hodgins. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by W. M. Smith against the executor of the estate of Mary E. Taylor to foreclose a mortgage, and against R. J. Edwards and another, to remove cloud from title on certain lots. From the judgment R. J. Edwards brings error.

<p>1. PARTNERSHIP — Doing Business Under Fictitious Name — Right of Successor to Sue. A corporation which has in good faith acquired a right of action for breach of implied warranty of machines theretofore sold its predecessor in such right may bring and maintain such action, notwithstanding such predecessor in right was a partnership, doing business under a fictitious name, which never complied with sections 3905 and 3907, St. Okla. 1890 (sections 4469 and 4471, Rev. Laws 1910).</p> <p>2. ASSIGNMENTS — Breach of Implied Warranty — Right to Assign. A right of action for breach of implied warranty that machines are suitable to perform the ordinary work for whieh they are made is assignable.</p> <p>3. SALES — Implied Warranty — Sewing Machines. In the absence of contract which negatives the same, there is an implied warranty in the sale of sewing machines that they are suitable to perform the ordinary work for which they are made.</p> <p>4. SAME — Caveat Emptor — Defect not Discoverable by Examination. The maxim of caveat emptor does not apply where the defect in ■ the machine sold by its manufacturer while it is new upon the " market is latent, is not discoverable upon examination, and renders the machine unsuitable to perform the ordinary work for which it is made.</p> <p>(Syllabus by Thacker, 0.)</p>

<p> Error from County Court, Okfuskee County; A. W. Huser, Judge. </p> <p>Action by Mrs. A. L. Northrop against the Weleetka Light ■& Water Company for damages. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. 'Action by Dorset Carter and others against Dellia Bowen, a minor. Judgment was for plaintiffs, and defendant brings error.

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by Mary Smith, widow, and others against the Chicago, Rock Island & Pacific Railway Company, for wrongful death. Judgment for defendant, and plaintiffs bring error.

<p>1. DEEDS — Inadequacy of Consideration. Inadequacy of consideration alone is not sufficient to justify a court of equity in setting aside a deed regularly executed.</p> <p>2. APPEAL AND ERROR — Review—Findings in Equity Case — Effect After Approval. In a suit in equity, the finding of the jury on questions of fact submitted to them are advisory merely, but,, when approved by the court, have the same force as the verdict of a jury in a law action.</p> <p>3. STIPULATIONS — Conclusiveness—Case-Made—Estoppel. Where counsel stipulate that the case-made contains all the evidence offered and received at the trial, they are estopped in this court and will not be heard to object to the consideration of an assignment of error requiring an examination of the, evidence, on the ground that the case-made does not contain a recital that it contains all the evidence offered and received.</p> <p>4. INDIANS — Allotments—Restrictions oil Alienation — Removal. The-restriction against the alienation of allotted land, imposed by section 16 of Act July 1, 1902, c. 1362, 32 St. at L. 641, was removed from the allotment of a Chickasaw allottee of one-eighth blood, by Act May 27, 1908, c. 199, 35 St. at L. 312.</p> <p>5. PLEADING — Supplemental Reply — Evidence. If, in a suit to cancel a deed, at the close of the testimony, plaintiff made application to the court for permission to file a supplemental reply, alleging that the deed had been obtained by fraud and deceit, and the evidence did not support such allegations, it was not prejudicial error to deny the application.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Osage County; R. H. Hudson, Judge. </p> <p>Action by Samuel Klein and J. D. Klein against J. Keller' on an account. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. 'CONTRACTS — Construction—Question for Court. A binding contract may be made through the medium of letters and telegrams passing- between the parties; and, in case such contract is made solely through such means, its construction is a question of law for the court.</p> <p>2. SALES' — “Warranty.” A “warranty” is an express or implied statement of something which a party undertakes shall be part of a contract, and, though part of the contract, collateral to the express object of it.</p> <p>3. SALES — Warranty—Effect of Description. The mere selling of an article by a particular description of the thing sold does not involve the question of warranty; in such case, if the thing delivered is not according to the description, it is a nonperformance upon the part of the seller of his contract.</p> <p>4. SAME — Breach by Seller — Remedy of Buyer, If the sale is of a described article, the tender of an article answering the description is a condition precedent to the purchaser's liability; and, if the condition is not performed, the purchaser has the right to reject the article, or if he has paid for it, to recover the price as money had and received for his use.</p> <p>5. SAME — Acceptance of Defective Property — Liability of Buyer. Where an article, in this case a colt, has been sold by description, and is shipped to the purchaser who receives same, and examines it, and finds it does not in all things answer the description, but who with full knowledge of the defects in the article, and of wherein it fails to correspond with the description by which it was sold, keeps the same, and writes the seller that he will pay the balance of the purchase price, it is an acceptance of the article, and the purchaser will be compelled to pay the purchase price.</p> <p>6. SAME — Estoppel, Where there is no express warranty accompanying a description of personal property and the buyer, after inspection and full opportunity to examine, accepts the property, he is estopped from afterwards claiming damages for failure to comply with the description.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Craig County; Theo D. B. Prear, Judge. Action by the State of Oklahoma against J. W. Libby for the support of a bastard child whose mother was Anna May Kiser. Judgment for plaintiff, and defendant brings error.

<p> Brror from County Court, Osage County; C. T. Bennett, Judge. </p> <p>Action by A. J. Smith against Ben Harrison. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Jefferson County; B. T. Price, Judge. Action by Frank N. Ireland and son against H. W. Floyd, upon two promissory notes. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Logan County; A. H. Huston, Judge. Action by Swift & Co. against the W. FI. Coyle Consolidated Companies for breach of contract. Judgment was for the plaintiff, and defendant brings error.

Error from District Court, Logan County; A. H. Huston, Judge. Action by the Chicago, Rock Island & Pacific Railway Company against the Board of County Commissioners of Canadian County and others. Judgment for defendants, and plaintiff brings error.

<p> Brror from County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action by Rosey Robertson against Frank O. Cavitt. Judgment for plaintiff, and defendant brings error.</p>

<p>MANDAMUS — Attachment—Acceptance of Redelivery Bond. Where the property of a defendant in an attachment suit before a justice of the peace is seized under the attachment order and in his favor judgment is rendered on the trial, and the plaintiff perfects an appeal to the county court, and pending such appeal the defendant tenders to the constable having in custody the attached property a bond conditioned as prescribed in section 5371, Rev. Laws 1910, and the constable refuses to accept the bond and to redeliver the property, such attachment defendant has a right to apply to the judge of the district court for a writ of mandamus, and such writ may properly issue commanding the constable to accept the bond and redeliver the property.</p> <p>(Syliabus by Galbraith, C.)</p>

<p> Error from County Court, Sequoyah County; W. N. Littlejohn, Judge. </p> <p>Action by George W. Ritter against the Town of Sallisaw, .a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Greer County; Jarret Todd, Judge. Action by the. Federal Discount Company, a corporation, against John and Ed Gault, partners, as Gault Bros. Judgment •was for the defendants, and plaintiff brings error.

<p>MONEY RECEIVED — Evidence. The evidence has been examined and found sufficient to support a verdict rendered by the jury.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Roger Mills County; G. A. Brown, Judge. </p> <p>Action by the F. B. Collins Investment Company against Lig Sanner and Dollie Sanner. Judgment for defendants, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Lav/ of the Case — Decision on Prior Appeal. The decisions on all questions of law made by an appellate court on appeal become the law of that particular ease, both for the trial court and this court on a second hearing, providing the facts presented in the second hearing, on the point formerly decided, are substantially the same as in the first hear-' ing.</p> <p>2. SAME. The facts in the second hearing of this case, on the points decided in the former appeal, are substantially the same as in the first trial; there was not sufficient difference to take the case out of the law announced in the first appeal.</p> <p>3. NEGLIGENCE — “Last Clear Chance.” The doctrine of “last clear chance” is recognized by the courts as an exception to the general rule that the contributory negligence of the person injured will bar a recovery, without reference to the degree of negligence on his part; and under this exception to the rule the injured person may recover damages for an injury resulting from the negligence of the defendant, although the negligence of the injured person exposed him to the danger of the injury sustained, if the injury was more immediately caused by the want of care, on the defendant’s part, to avoid the injury, after discovering the peril of the injured person.</p> <p>4. EAILEOADS — Crossing Accident — Sufficiency of Evidence — Negligence. The evidence in this case was sufficient to take the case to the jury on the question of defendant’s negligence and plaintiff’s contributory negligence. See former opinion, 24 Okla. 764, 108 Pac. 361, 2 syllabus.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Grady County; Erank M. Bailey, Judge. Action by Cornett Bros., a partnership, composed of E. G. and J. H. Cornett, against the Scottish Union & National Insurance Company, on a policy. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Noble County; Wm. M. Bowles, Judge. Action by M. A. Stahl and another against W. IT. Coyle, wherein two judgments were rendered, from which both parties bring error.

Error from District Court, Greer County; G. A. Brown, Judge. Action by the National Bank of Commerce against F. Arm-bruster and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Lincoln County; A. H. Huston, Judge. </p> <p>Action by the First Bank of Fallis against the Fidelity & Casualty Company of New York. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, McCurtain County; Summers Hardy, Judge. Action by John Thomas against the Frisco Lumber Company, for personal injuries. Judgment for plaintiff, and de- , fendant brings error.

<p>1. APPEAL AND ERROR — Harmless Error — Submission of Issues— Construction of Contract. Though, as a general rule, the construction of a written contract is a question of law for the court if from the language of the contract it is reasonably susceptible of but one construction, a judgment will not be reversed, although the construction of such contract may have been submitted to the jury as an issue of fact, if it appears that the substantial rights of the complaining party have not been prejudiced by having such issue submitted to the jury.</p> <p>2. PARTY WALLS — Contract—Construction. Where two adjoining lot owners, in the construction of a party wall, enter into a contract that whenever the second party begins the erection of a building making such party wall constitute one wall of the building such second party shall pay to the first party a given sum for the use of such wall, such contract should be construed to mean that the contract sum is due whenever such party wall is used by the second party as one wall of the building attached thereto.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>1. LANDLORD AND TENANT — Lease—What Constitutes. Under the circumstances shown by the record, the writing set out therein was properly construed to be a lease, and not a'proposal to lease.</p> <p>2. SAME — Sale of Premises — Rights of Lessee. The rule that stipulations in written contracts, for the purchase and sale of land, are merged in the deed executed in pursuance thereof, cannot be successfully invoked by the purchaser in an action for damages growing out of a failure to protect a lease, as stipulated in the contract for purchase.</p> <p>3. SAME — Repudiation of Lease — Liability of Purchaser. One who agrees to purchase a farm subject to a particular lease thereon, and accepts a warranty deed for the land, and afterwards repudiates the lease, is liable in damages to the holder of such lease.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>1. INSURANCE — Mutual Benefit Society — Provisions of By-Laws— Waiver. Where the by-laws of a mutual fraternal benefit society provide, "No officer of this society, either of the Supreme or any subordinate lodge, shall have any power or authority, nor shall such officer be permitted, to waive any of the provisions of the by-laws of this society which relate to the contract between the member and the society, whether the same be now in force or hereafter enacted," and vests in the order itself or a board of directors exclusive power and authority of changing, modifying, or amending its by-laws, then a local agent has no authority to waive the provisions thereof.</p> <p>2. SAME — Notice to Member. Where, under the terms of a beneficiary certificate, the by-laws of the brotherhood are expressly made a part of the contract between the brotherhood and the member to whom the beneficiary certificate is issued, such member is charged with knowledge of the provisions of such by-laws and is bound by the terms thereof.</p> <p>3. SAME — Suspension of Member. Where the by-laws of such order provide that tiie failure of any member to pay all dues and assessments upon a certain date shall operate to suspend such member from the benefits of such society until reinstated upon a certificate of good health, the nonpayment of such dues and assessments operates ipso facto to suspend such member until reinstated as provided in the by-laws.</p> <p>4. TRIAL — Direction of Verdict — Conflicting Evidence. AVhere there is a controverted issue of fact and conflicting testimony in reference to the fact as to whether a member is in good health when reinstated, it is error for the court to take such issue from the jury and direct a verdict.</p> <p>(Syllabus by I-Iarrison, C.)</p>

<p>1. PLEADING — Judgment on Pleadings — Nature of Motion. “A motion for judgment on the pleadings is in the nature of a demurrer, which it closely resembles, and admits for its purpose the truth of all the facts well pleaded by the opposite party.” 11 Enc. of PI. & Pr. 1046.</p> <p>2. SAME — Demurrer—Effect. A demurrer to a pleading admits every material fact properly stated in the pleading.</p> <p>3. SAME — General Demurrer — Ruling. Where a pleading states any facts upon which the pleader is entitled to any relief under the law, a general demurrer should not be sustained.</p> <p>4. SAME — Judgment on Pleadings — Foreclosure of Mechanic’s Lien — • Sufficiency of Petition. In an action by a materialman to enforce a lien for material furnished, if the petition shows a cause of action against defendant for wrongful conversion of such material to defendant’s use, it is error to render judgment on the pleadings against plaintiff, although the petition may not show plaintiff entitled to enforcement of a lien, and although the prayer may be only for the enforcement of a lien.</p> <p>5. TROVER AND CONVERSION — Building Material — Implied Contract to Pay. Where an owner or lessee lias contracted with a builder to furnish material and construct a building, and after-wards becomes dissatisfied with the builder and cancels the contract with him, and where, on the date of the cancellation of such contract, a quantity of lumber and material which has been furnished to the builder by the materialman is piled out upon the premises, but has not been used, and such lumber and material is not taken into account by such owner and builder in the settlement of their differences, and where such owner converts such material to his own use, and uses the same in the construction of his building, he takes same under an implied contract to pay for it.</p> <p>6. MECHANICS’ LIENS — Foreclosure—Petition. A petition which shows that defendant is lessee of certain premises and fully describes the premises, and that such lessee contracted with a firm of builders to furnish the material and construct a building for lessee, and that plaintiff had knowledge of such contract between the lessee and the builder and entered into a contract with such builder to furnish the lumber and material for the building in question, and that pursuant to which contract he furnished the lumber and material for the construction of such building, and that, on or about the date on which the last item of material was furnished, the owner and the builder had a misunderstanding resulting in the settlement of their differences and cancellation of their contract, and that plaintiff had no knowledge thereof, and that the lumber and material furnished by plaintiff was at the timo piled out upon the premises, and that no XJart of same had at that time been used in the building, and that no x^art of same was taken into account in the settlement of differences between the lessee and the builder, and that thereafter the lessee completed his building and used the lumber dnd material that x>laintiff had furnished in the construction of same, and alleges the value of such lumber and that no x^ai't of same had been piaid for, and shows that the lessee had had notice in writing from plaintiff that plaintiff had filed a mechanic’s lien against such building for material furnished to the builder, who had been discharged, states a cause of action against such lessee, which entitles the plaintiff to enforce his lien against such lessee as an original contractor with the owner.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>1. NEGLIGENCE — Contributory Negligence — Submission of Issues. There was ample evidence of the primary negligence of defendants, and the question of plaintiff’s contributory negligence was properly submitted to the jury.</p> <p>2. PARENT AND CHILD — Earnings of Child — -Emancipation. Under the laws of this state, parents are, ordinarily, entitled to the earnings of a minor child, and may sue and recover same; but the parent majr emancipate the minor ehild, in which event such minor may receive, recover, and retain the fruits of his own industry.</p> <p>3. PLEADING — -Sufficiency—Implied Allegations. It is a well-established principle of pleading that there need be no direct allegation of a fact if the same otherwise suffieienty appears, or of a fact which is necessarily implied from other averments in the petition.</p> <p>4. ESTOPPEL — Pleading — Petition — Conclusions—Emancipation of Child. The fact that a minor child’s earnings have been relinquished to him- — that he has been emancipated — is necessarily-implied, and will be inferred, from the averments of a petition in an action to recover damages for decreased earning power that is brought by the father as such and as next friend for the minor, and in which the father avers that the minor is entitled to have and recover, in his own suit, such damages; and the failure to specifically allege the son’s emancipation does not render such a petition fatally defective, nor does it prevent the introduction of proof of the faet of emancipation.</p> <p>(a) Under such circumstances, the acts of the father in prosecuting a suit as next friend for his minor son would estop such father from later maintaining a suit to recover such damages for his own use.</p> <p>5. DAMAGES — Personal Injuries — Special Damages- — Pleading. Tn a suit for damages on account of personal injuries it requires an allegation that obligations have been incurred for medical attention, hospital fees, etc., to justify proof of, or a recovery for, such items, as they are in the nature of special damages.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Grady County; Prank M. Bailey, Judge. </p> <p>Action by Cornett Bros, against the Fire Association of Philadelphia, on a policy. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Noble County; W. M. Bowles, Judge. Action by James J. Cummings against James Lobsitz and the City of Perry, a municipal corporation. Judgment for defendants, and plaintiff brings error. In the year 1909 James J. Cummings, plaintiff in error, who was plaintiff below, owned a frame building on lot 11 in block B, in the city of Perry, Olcla., and during the same year the city of Perry, a municipal corporation, removed said building.

Error from County Court, Hughes County; W. P. Gardner, Judge. Action by Sallie A. Streit, as interpleader, against E. W. Casner, as plaintiff, in a case appealed from the justice of the peace for possession of the property or its value. Judgment'for interpleader, and plaintiff brings error.

Error from District Court, Bryan County; Summers Hardy, Judge. Action by E. T. Haynes against the Steger Lumber Company and others. Judgment for plaintiff, and defendant named brings error.

<p> Error from County Court, Garvin County; W. B. M. Mitchell, Judge. </p> <p>Action by J. R. Beatty against T. L. Wisdom and the C. M. Keys Commission Company, a corporation. Judgment for plaintiff against the corporation, and it brings error.</p>

<p> Error from Superior Court, Pottazvatomie County; George C. Abernathy, Judge. </p> <p>Action by Tona Sperra against the Osage Coal & Mining Company. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court,' Johnston County; Nick Wolfe, Judge. Action by A. B. Holbert, on written instrument for purchase price of stallion, against C. N. Rutherford. Judgment for plaintiff, and defendant brings error.

Error from District Court, Caddo County; J. T. Johnson, Jtidge. Action by John M. Swain and Addie L. Swain, his wife, against the city of Anadarko. Judgment for plaintiffs, and defendant brings error.

<p> Error from County Court, Okfuskee County; J. B. Patterson, Judge. </p> <p>Action by M. H. Castleberry against the Weleetka Light & Water Company. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Okfuskee County; Tom Hazelwood, Judge. Action by J. W. Burleson for salary for services, against the Weleetka Light & Water Company. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Moot Questions — Mandamus. Where, in an action of mandamus to compel the mayor of the city of Edmond, M. E. Wood, to sign certain warrants, a judgment is rendered in the district court against the said M. E. Wood as such mayor, and he appeals to this court, hut before final submission he retires from office and his successor is elected and qualified and assumes the duties of such office, and no request is made to have the successor substituted, the only matters presented for determination by this court are abstract and hypothetical questions and disconnected from the granting of actual relief, and therefore will not be decided by this court.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>1. EXECUTORS AND ADMINISTRATORS — Claims Against Estate —Sufficiency of Affidavit. Under section 5278, Comp. Laws 1909 (Rev. Laws 1910, sec. 6339), requiring creditors, when they file their claims against a decedent's estate, to file an affidavit stating that the amount is justly due; that no payments have been made thereon which are not credited; that there are no offsets to the same to the knowledge of the claimant or affiant, and when made by a person other than - claimant, to set forth the reason therefor — an affidavit filed by the claimant, which recites that the claim, to the best of affiant's knowledge and belief, is just, due, and unpaid, and that there are no offsets or credits against the same is a substantial compliance with said section.</p> <p>2. SAME — Affidavit—Statement of Reasons — Sufficiency. The provisions of section 5278, supra, that the affidavit supporting a claim against a decedent's estate, when made by a person other than the claimant, must set forth in the affidavit the reason why it is not made by claimant, is satisfied by an affidavit that the affiant is one of the attorneys for claimant, who is a nonresident of the state of Oklahoma, and not now within the state to verify the correctness of the claim.</p> <p>3. SAME — -Disputed Claims — Appeal—Mandate—Subsequent Proceedings — Rendition of Judgment. Where, in an action on a claim against an estate, the only question contested is the sufficiency of the verification of the claim, and this court having held that the verification, is sufficient, and set aside the judgment appealed from, it is the duty of the court to render- judgment under section 5258, Rev. Laws 1910, against such estate.</p> <p>(Syllabus by Rittenhouse, G.)</p>

<p>APPEAL AND ERROR — Moot Question — Injunction. In an action by a tenant to enjoin and restrain a landlord from the violation of an oral rental contract on certain lands for the year 1912, and from interference with the tenant's possession during said year, judgment is rendered on the pleadings for the defendants, and the cause is submitted to this court in the year 1914; the only matters presented for determination are abstract and hypothetical questions, disconnected from the granting of actual relief, and therefore will not be decided by this court.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p> Error from County Court, Creek County; Warren H. Brotvn, Judge. </p> <p>Action b}’ the People’s Furniture Company, a copartnership, composed of Curtis Redd, Mark Hillis, and C. E. Edgerton, against Jonas B. Lehmann. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Nozvata County; T. L- Brozun, Judge. Action by W. Y. Thraves and others against J. R. Green-lees'and others. From the judgment, plaintiffs and the defendant named bring error.

<p>1. TRUSTS — Constructive Trust — Beneficial Owner. Where a party obtains the legal title to property, not only by fraud or by violation of confidence, or of fiduciary relations, but in any other un-eonseientious manner, so that he cannot equitably retain it against the rightful owner, equity carries out its theory of a double ownership, equitable and legal, by impressing a constructive trust upon the property in favor of the one who is in good conscience entitled to it, and who is considered in equity as the beneficial owner.</p> <p>2. SAME — Constructive Trust — Parol Evidence — Burden of Proof. A constructive trust may be established by parol evidence, but the law for the safety of titles requires that the proof should be of the most satisfactory and trustworthy hind. The onus of establishing a constructive trust rests upon him who seeks its enforcement, and before a court of equity will be warranted in making a decree therefor, the evidence must be clear, unequivocal, and decisive.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. DEATH — Action—Right of Action — Personal Injuries. The right of action of a person, injured through the wrongful act of another, to recover the damages sustained thereby, existed at common law, but abated upon the death of such injured person. This common-law right of action survives, and is thus preserved, in the personal representative of decedent, by the terms of sections 5943, 5944, Comp. Laws 1909 (Rev. Laws 1910, secs. 5279, 5280), and the cause of action and its survival arc quite independent of sections 5945, 5946, Comp. Laws 1909 (Rev. Law's 1910, sees. 5281, 5282), relating to the recovery of damages-for the benefit of certain beneficiary therein named. And such action may be prosecuted to final judgment by the administrator, notwithstanding death resulted from such injuries.</p> <p>2. EXECUTORS AND ADMINISTRATORS — Assets—Right of Action for Personal Injuries. The damages recoverable in such action, when revived, are only such as were sustained by the injured person in his lifetime (such as accrued in the period between the. injury and his death), and when recovered are assets of his estate, and are not for the benefit of the widow' and next of kin, except as they may take as heirs upon the final distribution of the estate.</p> <p>3. SAME — Judgment- — Assets of Estate — Recovery for Wrongful Death — Bar to Subsequent Recovery. Sections 5945, 5946, Comp. Laws 1909 (sections 5281, 5282, Rev. Laws. 1910), create a new cause of action, to be prosecuted for the exclusive benefit of the beneficiaries named therein; the damages recovered in such suit do not become assets of decedent's estate. Such action is not dependent upon any common-law right, and the right to maintain same is independent of sections 5943, 5944, Comp. Laws 1909 Rev. Laws 1910, secs. 5279, 5280). Nor will a recovery under these sections for the benefit of the widow and next of kin bar a -recovery for the benefit of the estate of decedent, on account of the suffering and loss the decedent sustained through the injuries wrongfully inflicted on him, where death was not instantaneous.</p> <p>4. WITNESSES — Competency—Husband and Wife. Neither the statute nor the common law prevents one spouse, after the marriage relation has terminated, from testifying, in a case in which the other is a party, as to independent facts, within the knowledge of the witness, and not coming within the definition of privileged communications.</p> <p>5. APPEAL AND ERROR — Judgment—Remittitur. Where a verdict in a damage suit itemizes the damages allowed, and some of the amounts are not justified under any view of the evidence, but the other amounts allowed seem to have been proper, the court being able to separate the legal from the illegal allowances, plaintiff will be offered the right to remit the amount he is not entitled to receive.</p> <p>6. APPEAL AND ERROR — Harmless Error — Instructions. Where an instruction has permitted the jury to award an illegal item of damage, and the illegal allowance can be clearly determined by this court on the record, and a remittitur to cover the illegal allowance is offered and .accepted by plaintiff, the error in the instruction becomes harmless.</p> <p>(Syllabus by Brewer, C.)</p>

<p>APPEAL AND ERROR — Case-Made—Certification as Transcript. An appeal attempted to be brought here by case-made, but which does not affirmatively show that it was served within the three days after judgment, nor within an extension of time properly allowed by the court, cannot, after the time allowed by the statute for filing an appeal has passed, be withdrawn and certified as a transcript for the purpose of having- it considered as such.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Injunction by S. E. Brady and others against the Board of County Commissioners and Treasurer of Canadian County. Judgment for plaintiffs, and defendants appeal.</p>

Error from County Court, Bryan County; J. L. Rappolee, Judge. Action by Thomas Dewey Slinker, a minor, against J. I. Slinker, his former guardian, and the Title Guaranty & Surety Company, surety on the guardian’s bond. Judgment for plaintiff, •and the surety brings error.